A Different Approach to UIM Stacking

The most recent decision of the Missouri Court of Appeals enforcing an auto policy’s anti-stacking provisions applicable to UIM coverage.

How to address the “stacking” problem has been a constant challenge for insurers in Missouri. This is particularly true of underinsured motorist coverage where the policy includes an “other insurance” clause rendering the UIM coverage excess over other collectible UIM coverage when the insured is injured while occupying a non-owned vehicle. Because the clause informs the insured his or her UIM coverage is excess over other such coverage in the non-owned vehicle situation, the cases say, the insured has reason to believe the policy actually expressly allows stacking in that scenario despite otherwise unambiguous “anti-stacking” language. Recent decisions of the Supreme Court of Missouri in this regard include Seeck v. GEICO Gen. Ins. Co., 212 S.W.3d 129 (Mo.banc 2007), and Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132 (Mo.banc 2009).

In an opinion delivered on December 11, 2012, the Missouri Court of Appeals, Eastern District, addressed the language of an Allstate Insurance Company policy apparently designed to avoid the result mandated by Seeck, Ritchie, and other cases like them. The court found Allstate’s approach effective and held the policy unambiguously prohibited stacking.

The policy in Hall v. Allstate Ins. Co., — S.W.3d — (Mo.App.2012), included an excess provision, but it differed substantially from corresponding provisions in cases where stacking has been allowed. Rather than stating the UIM coverage was excess over all other collectible UIM coverage, which would include other UIM coverages under that policy, it said the UIM coverage was excess over “underinsured motorists or similar type coverage under another policy.” Accordingly, the court found the provision did not render UIM coverage for each vehicle excess over UIM coverage for the other vehicles covered by the same policy. Each of the insured’s three vehicles were covered under the same Allstate policy, meaning the provision did not allow stacking.

Additionally, the Allstate policy included provisions directly stating stacking was not allowed. At multiple places, the policy stated, “This means that no stacking or aggregation of coverages will be allowed by this policy,” including once all in capital letters. The Hall court reasoned, “This clause, written in a way to draw attention to itself, is clear, direct, straightforward, and uniformly consistent with all the other language in the policy that unambiguously and unequivocally prohibits the stacking of coverage.” Accordingly, the appellate court reversed the summary judgment entered by the trial court that permitted stacking of UIM benefits.

**NOTE: The Hall decision, decided on December 11, 2012, is subject to rehearing and transfer to the Supreme Court of Missouri and should not be considered binding until the period for hearing or transfer has expired.**